A Half-Full, Not Half-Empty Decision:
United States v. Stevens

The Supreme Court of the United States, by a vote of 8-1, held
unconstitutional the federal statute criminalizing creation, possession or sale
of material depicting cruelty to animals.

ISAR had submitted an amicus curiae ("friend-of-the-court") brief in the case
and our Chairman, Professor Henry Mark Holzer, presented two audio commentaries
about it--one after our brief was filed and the other following oral argument.

Although the case, and the issue which remains unsettled, was of obvious
importance to the animal protection movement, so too did it implicate the First
Amendment's guarantee of free speech.

Exceptions to that guarantee--defamation, "fighting words," hard-core
pornography--are rare, yet the Court was being asked to create another one by
upholding the suppression of the speech that the challenged statute
criminalized: depictions of cruelty to animals.

In declining to create that exception, the Supreme Court did not rule that
government--Congress or the states--lacked a substantial (the lawyerly term is
"compelling") interest in illegalizing depictions of animal abuse. The
"compelling interest" issue was raised in the Stevens case, and the Court could
have decided it--but despite being invited to, it didn't. (Although in his
dissent, Justice Alito stated unequivocally that the federal government did have
a compelling interest in preventing the conduct that the statute was aimed at.)

Instead, the Court's eight member majority ruled that the statute was
"overbroad," meaning that the law could be interpreted to suppress speech of
activities which, though distasteful to many (like hunting), were perfectly
legal. In other words, the Court objected to the potential broad sweep of the
statute, not its intention to protect animals from certain forms of
unquestionable cruelty by suppressing depictions of that cruelty.

Already legislation has been introduced in Congress to comport with the
Court's invitation that the legislature craft a statute narrowly reflecting its
substantial interest in curbing cruelty to animals--a law which is not overbroad
and targeted more specifically to the goal that all members of the Court share:
ending the scourge of crush videos and dog fighting by suppressing the
depiction.

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